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tv   [untitled]    September 16, 2010 5:30am-6:00am PST

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the public defender's office, and they were brought into the office. they were not elected. they were selected by the chief operating officer, whose main bottom line is economics, not justice, and they said, this is the budget you are going to be given. you either do the job with that budget, or we get someone else. are you willing to take the job? that was the condition and made bluntly. i happened to be on the panel. everybody was talking about stakeholders and how we wanted a team player. i think the culture makes the player. now you hire somebody that is going to be a team player.
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we need independents. i am not sure i would go with the reelection everywhere. in san francisco, you have got an intelligent electorate, but i think independence is very important. also, you have to be independent of the judges. we found they were intimately involved in selecting the people who would appear before them. we found 90% of public defenders reported judicial pressure to expedite cases. that means when you are under one staff -- understaffed and overworked, the judge says, you have enough time. we need to move things along. this train that has to be speeding -- i think that is a real problem. judges are implicit when public
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defender offices are not given the resources to do an adequate investigation, so i think those are big problems we see. >> you raise an interesting point about whether a public defender should be elected or appointed. let me ask you this. you are appointed common and and i saw when you made your case -- you are appointed, and i saw when you made your case, they basically accuse you of mismanagement common and and they pointed the finger at year- end said, you have a $300,000 deficit. -- at you and said, you have a $300,000 deficit. i am curious to know, because you are appointed, what pressures did you feel to stand
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up for your office? the consequences to your career? >> you have to have the mindset that your ethical obligations to your clients come first. if that means your neck is on the line, so be it. if you have not got the guts for that, you should not be taking a job as a public defender. [applause] i went through that whole circus. what it comes down to is, there are two competing factors involved. you are a department head. you are supposed to watch out for the budget, etc., but the budget comes second to the rights of the accused, the people you represent.
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people ask whether i was conflicted as to where my loyalties lie, and i said, i am not conflicted at all. my loyalties lie in one direction, and that is the people i represent, so when they say, you had better cut this or that because it is good for the county. if it is not good for my client, it is not going to happen. >> i want to acknowledge the public defender of sacramento is here, answer john represents the project, and he is here. we learned there was a lab technician stealing drugs from the lab. this was going on apparently for some time. we do not know exactly how long, but what was alarming is ahead
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of the narcotics unit in november told the supervisors with in that office that there was a problem with this witness, that his witness was unreliable, and yet criminal investigation open until february. likewise, she called police and said she had found vials' that appeared to be from the crime lab of cocaine, and again, nothing was done, even though the police did look into it. there was a recommendation that there be a criminal investigation, and then nothing happened for several months. starting with you, john, how could this happen? how does it happen? when we talk about ordinary in
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justice, we have a situation here where an entire office of prosecutors did not run record checks on police officer witnesses. as many as 130 so they have no convictions -- sure they have convictions. it is required they expose this information. we do not have access to it. we can file a motion, but my understanding is that evidence that was withheld was not a sensible to the defense, so we have a systematic failure of the district attorney's office in san francisco to provide people with this evidence, and it can make a huge difference if you have an officer convicted
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of a crime, and i do not think anyone would want an officer on the street who would be convicted of a serious crime. any thoughts on that? >> i think it comes down to several things. first is the culture of office. what you see a lot of prosecutors office is a win at all costs mentality. it is not about the real job, which is to seek justice and the truth, and the other part of the problem is there is a reluctance on the part of prosecutors and judges, especially when you take a look and a wrongful conviction cases, to admit they have problems or they have made mistakes, and that is one of the most difficult things to try to overcome. as has been discussed by several
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panel members, all the stakeholders in our criminal justice system have an interest in moving things along, and the minute you tried to throw some type of change in that process, that screws things oup, and that knocks the system of the rails, and when you have prosecutors underwithholding evidence and not allowing the doors and windows to be open, you have a serious problem, and we in the community have a right to demand that change. i think we have done an abysmal job of holding people accountable in criminal cases. in civil cases, they get sanctioned all the time, but rarely do you see any
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prosecutor or defense attorney give brought before the state bar disciplinary proceedings and actually take a look at the conduct -- not like what happened in a lot of prosecutorial misconduct case, and whether or not it is harmful or harmless. what we need to do is take a look at the misconduct, because what happened happens around the country on a daily basis. that is ordinary injustice. this guy gets miss hard for misconduct -- misbarred for misconduct, and somebody else skates free. we need to be looking at conduct. we need to be opening up offices. we need to be asking questions
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and getting the media involved and not be hiding behind this secrecy. >> we are now going to turn to some questions from audiences. if you have questions, please write them on a card, and you can give them to anyone. this is a question regarding a similar controversy in riverside county, and the question is, have judges here barred admission of evidence at trial. if so, how does the public defender's office address that? the judge who heard the motions in this case has decided most of the materials the prosecutor was
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not providing on the basis that there was a criminal investigation involving the technician who was dealing drugs has been released, and we are learning about what evidence prosecutors have, what they would help, and we will be making motions to withdraw please, and one thing i think gets lost in some of the coverage is people think, who cares if somebody was dealing drugs? the problem is when you start looking at the evidence that was coming back, because they would do a retest of the evidence -- in some cases there were more drugs. in some cases there were less drugs. in some cases there were problems with their results, whether they were false
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positives or false negative common ---, and when you are talking about the integrity of a crime lab that is in charge of deciding who is guilty and not give states and the process is flawed, you cannot trust anything that comes out of the lab. we had a dna sample that came out in september where the dna of two technicians found in the sample that was tested, and the irony is we had made a number of challenges to the crime lab requesting an audit in november the showed they lost their accreditation, and we had to go to court because they would not turn it over, and the judges were telling us, you are making a mountain out of a molehill. little did we know there was all this bubbling underneath, so it is true the onus of the burden
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is on the defense, because once we have the information we have to file the motion. it is a tremendous amount of work we have to do, but what we need to do is make sure there is a process so people who were convicted can bring their cases back to court. our next question from the audience says, in santa clara county when people plead guilty to misdemeanors, what happened? did they go to jail? for how long? what type of crimes? >> one of the chief dynamics that was happening was that many people were faced with a choice between staying in jail sometimes up to a week or even longer waiting for a public defender to get to their case for just to get out right fair,
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-- right there, because the judge was basically saying, plead guilty. what is the big deal? that was the impression. everybody was taking the deal. you could almost see them talking to each other. you could see them make that decision. any pointed out it is a huge deal for a misdemeanor. 5000 people just on convictions out of the courtroom, and who knows how many other guilty convictions, with immigration consequences, sometimes deportation, housing implications, job implications. it was amazing the damage that was coming out of that courtroom. of were some of the people are pleading guilty guilty? of course they were, but you did
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not have an advocate for them. if there was not representation. there was not advocacy for the people. there was not advocacy for the client, the defendant, and the judge took all those hats on at once, and i think even they acknowledge they were not doing a great job of it, so most people avoided jail on some of those charges like public intoxication, but they ended up with convictions. a lot of people went to jail. >> thank you. the next question is for amy. how can we talk about ordinary injustice without talking about the inherent problem us plea- bargain is and how the use of plea bargains undermines the truth finding process of the justice system?
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>> i gave a talk at n.y.u. to a small group of criminal justice law professors, and one professor stood up and said, why didn't you recommend your conclusion that we get rid of clean bargaining and that we have trials for everybody. clearly, these plea-bargain are inherently coercive, and my answer is if you got rid of a plea-bargain in, that is like saying 50% of marriages end in divorce. we should get rid of the institution of marriage. it is so much a part of our system that if we turned it on its head, first of all, people say the system would collapse, but it is an inherent part of our society and judicial system, so given the system we have
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worked with, i believe a plea is not inherently coercive. a plea bargain can be a good deal if individual circumstances are looked at, and public defenders talk to their clients. they do investigations. they negotiate with the prosecutor, and if the deal is given for the courts friends 1/5 of the time, i do not think that is necessarily -- accord spends 1/5 of the time, i do not think that is a bad thing, but sometimes people do not have the resources to do the investigation, but there is this courtroom culture, where it is, let's just get this through with fast-food justice, and individual circumstances are not looked at. that is when there is a serious
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problem. >> 95% of criminal cases in this country result in plea bargains, which means the system itself is ripe for abuse, and part of the problem is if you do not have a competent defense attorney challenging that, because prosecutors will overcharge. they do not have the evidence, so they can force sometimes these plea-bargain on individuals, and that is why it is incumbent for the defense attorney to really challenge when they are negotiating with the prosecutor in a plea bargain and really push for all the stuff and the prosecutors' files and let them really disclose what they have. >> we found the overwhelming majority of cases are disposed of -- of felonies are disposed
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of by the felony disposition conference in chicago -- in san diego, and across the state everybody has this prior to the hearings, prior to any testing women in san diego -- to any testing. i think plea bargain with the caveat that it be fully investigated before you plead not declared guilty. that story you said about a husband who broke the leg of the infant child and threatened to beat her up, so she took the fall and pled guilty, so i think the failure to investigate comes into whether a plea bargain can be reasonable in our system. right now it is not rational. >> a couple of quick questions. the problem you are outlining --
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are they also true of the juvenile justice system? >> in the work we have done, absolutely, and sometimes, even more egregious. it is a lot easier. many times juvenile star without justices. the ability to intimidate a juvenile is truly extraordinary. when the supreme court banned this, part of the reasoning was based on science and the development of an individual's fringe continues into early
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20's, so you are talking about individuals that are extraordinary vulnerable when it comes to pressures of any authority pushing them one way or the other. that is all the time we have for this panel. we are going to go straight into the next panel. i want to highly recommend "ordinary in justice." i want to thank yoall of our panelists for coming. thank you. we will go directly into our >> once again, and the public defender in san francisco.
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roblin like to introduce the chief attorney of san francisco who will be moderating the next panel. >> thank you and good morning. first, i want to show you some video clips before we move into the next panel. the public defender salary is paid for by the city. it is the public defender's due to defend the public from a crime until they are proved guilty in a court of law.
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>> there you are, your honor. the district attorney once here said evidence included to show evidence of missing intermission in the report. >> that letter is a forgery. it is indeed in my letter paper. i write my letters on small blue paper with my initials on it. >> like this? >> tell me the truth. >> ok, it was my cousin's idea.
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>> my clients the ability to understand what is right and wrong was damaged by watching hours of the video of one man who enjoyed having sex. >> i think we should see what he is like. >> and attorney in the public defender's office? >> at ease, ladies and gentlemen of -- the jury. >> i am willing to do this pro bono. you can get all of my expertise for free. or you could get a $40,000 public defender.
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>> i am terribly sorry but i no longer represent my client. i need to be replaced as counsel. #x6rñ>> the first time i heard e term public tender was 20 years ago when i walked into the holding tank for the first time. the last time i heard the term public crusader was from a former law student talking about their perception of public defenders. so what are we? what does the public think we are? public defenders, and more broadly, criminal defense lawyers. and what does it matter if anything? those are the answers we are going to tackle this morning. we have assembled a great panelists to help us into those
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questions. let me introduce the panelists. to my immediate left is jonathan shapiro, an attorney and former u.s. assistant attorney, who has spent the last several years and 10 season working on television dramas such as "the practice" and "boston legal." next to him we have jamie floyd. broadcast anger for network news. many of you know her from her daily live broadcast "the best defense. next is a local attorney who has handled a number of high-profile cases including a nationally publicized acquittals of actor robert blake and civil rights lawyer stephen bingham. to his left is a career public defender from washington state. she is a blunder and has her own -- blogger and has her own
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blog. so'. does the media contributes to a negative misconception of public defenders, and more broadly, criminal defense attorneys? >> no, thank you. [laughter] >> absolutely yes. i think for the most part, there is the lack of understanding on the part of the american public on more critical role of the public defender. it is laid down in our sixth amendment. we do not teach it properly in primary school education. the public learned of it through
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the news media and come to some extent, through the entertainment media. most of my colleagues, and it with a bias that is predisposed against the criminal defendant and criminal defense attorney there for. i do not think there are aware of this bias for the most part, but i'm speaking from my own anecdotal experience. my reason to get into the business is to counter that bias. i came from a car rear as a criminal defense attorney. the bis filters into the programming, reporting, coverage of cases. most of the cases do not have a camera present. even when the camera is present, it cannot entirely help to filter of bias. how many of you can sit at home and watch the robert blake trial from gavel-to-gavel, even if it is televised? when the camera is not present,
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you must rely on the boarding -- the reporting. i have had many instances where i was reporting on a trial and i will listen to my colleague on my right and left and wondered if they had been in the same courtroom that i was in. their sense of what happened in that room was very different from my own. i often feel that they're pro- prosecution bias is present. there is an assumption that they must have done something wrong or they would not have been charged in first place. maybe that is human nature, but it certainly makes its way into reporting. i also think in our last 15, 20 years of political context, because of the wave of crime, violence, and we can


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